Tag: State Sovereign Immunity

State Copyright Infringement Should Be About Justice

And it’s a shame that justice will not be the basis on which it is corrected. If it ever is.

Recently, the U.S. Copyright Office published its report on copyright infringement by states and state actors in response to the present circumstance whereby states are immunized against litigation for unlicensed use of protected works. As the Supreme Court held in the late 1990s, and affirmed in Allen v. Cooper (2020), Congress lacked the authority, under its Article I powers, when it explicitly abrogated Eleventh Amendment state sovereign immunity in federal suits against states for infringements of intellectual property.

I have written extensively on the background of sovereign immunity, and this post will provide a detailed account of where things stand and how they got that way. But the big bullet point of the moment is that the USCO was asked by Congress to report on the scope and nature of state infringements to discover whether a foundation exists for yet another run at legislative abrogation of state immunity for IP enforcement. The report was requested after the Supreme Court in Allen, even while acknowledging the injustice of the outcome, indicated that any new laws that set aside immunity would have to be based on evidence of widespread “intentional and reckless” infringement by state actors.

Intentional and reckless are evidentiary standards for which stakeholders representing state entities (e.g. university libraries) advocate a high bar that the alleged infringer must be proven to have knowingly made unauthorized use of a work. Conversely, entities like the National Press Photographers of America (NPPA) advocate the lower bar that the alleged infringer must act upon “something more than negligence.” Personally, I tend to think that unless one is somehow unaware that copyright law exists in the U.S., the default assumption should be that using a work without obtaining permission is most likely an infringement.

Too Much Focus on Volume and Frequency

Meanwhile, it seems that a significant injustice in this whole mess is the idea that Congress should be required to gather evidence of a large volume of state infringement presently occurring in order to meet what is called the “congruent and proportional” standard for abrogating Eleventh Amendment immunity in order to protect creators. The principle of the standard is sound enough. For a law to encroach upon a constitutional right, it must remedy a constitutional harm in a manner that is proportional to the injury being done to the first right. And in Allen, the Court held that when Congress abrogated immunity in 1990 for copyright infringement (with the CRCA), it failed to do so based on sufficient evidence of state infringements necessary to meet the “congruent and proportional” standard.

Consequently, it seems reasonable to worry that injustice may be perpetuated as a result of too much emphasis on the volume and frequency of measurable infringements because that is not how laws protecting individual rights are supposed to work. On the contrary, many laws of this nature are often meant to address minority interests in which individual rights may be infrequently yet substantially infringed—as is the case with laws mandating access to public facilities for persons with disabilities.[1] And in addition to the fact that a single copyright infringement by a state actor can do significant economic harm to an independent creator or small business (even causing self-inflicted harm to the state itself), the emphasis on quantity and frequency of infringements nationwide elides a principle beyond economics that has been woefully diminished in the whole state immunity narrative.

It is potentially regressive in many areas of national policy that the Supreme Court determined that Congress’s Article I powers do not extend to abrogating state immunity, even for the purpose of writing explicit and narrowly-tailored federal laws. And I would argue that state copyright infringement is a challenge that emphasized the nature of this dysfunction. Because of all the authorities granted to Congress in Article I, only the IP clause empowers it to pass laws with the express purpose of protecting a unique set of rights secured to individual citizens. And copyright is further distinguishable from its twin, patent law, because most of the works copyright protects are creative, personal expressions that are unavoidably intertwined with the authors’ speech rights.

So, when a state or state actor infringes copyrights, the implications are, of course, financial, but quite often much more than financial. They are acutely felt, unconstitutional violations of individual liberty. So, while I certainly hope that, for instance, Rick Allen prevails in his copyright takings claim in North Carolina, it is at the same time unfortunate that the sovereign immunity narrative is limited to treating copyright as strictly analogous to ordinary property because this view overlooks a fundamental injustice—one that is not ignored in the private sector.

Compelled Speech is an Inevitable Byproduct of Sovereign Immunity

To illustrate the point, imagine the following hypothetical that I wish we could call farfetched:  Imagine a TV commercial or promo video produced by a state-funded entity that uses music without license, written and performed by feminist icon Beyoncé, to endorse Texas’s draconian anti-abortion law. Not only would the state actor have committed prima facie copyright infringement, but any reasonable observer would consider this use of the artist’s music to be an even greater crime of compelled speech. When creative works like music are used via compulsory license at political rallies, compelled speech may occur in those instances; but in a case in which a state-funded entity or state-employed individual uses a work to convey a specific message to which the creator(s) may be profoundly opposed, the speech infringement argument is even stronger.

As I say, I wish this was an unrealistic hypothetical, but the current state of our politics indicates that it is not. And I concocted the Beyoncé scenario to draw attention to the kind of personal, and not merely financial, injury that nearly any creator experiences when her work is misused. One could easily reverse the narrative and imagine a Christian rock band’s music appropriated to endorse abortion rights, and the principles would be the same.

But, of course, most creators are not Beyoncé. They are small, independent authors of works, and the more likely scenario is one in which, perhaps a photograph is used to endorse a message with which the photographer disagrees. Unless the photographer and photograph are quite well known, the compelled speech argument would be more difficult to make, though it would still be felt by the creator of the work. In fact, in the NPPA’s written comments of September 2 to the Copyright Office, the organization stated the following:

Simply put, with state sovereign immunity for copyright infringement, states are free to present and promote their messages by using copyrighted works against the wishes of the journalists and artists who created them. A state that opposes same-sex marriage, for example, could use the images taken by a wedding photographer to promote its position on “family values.” Each infringing use of imagery, if committed by a state actor, would amount to unconstitutional forced speech.

But in any similar circumstance other than a state infringement, the author is able to enforce her copyright rights to prevent a use of which she does not approve, whether for creative, cultural, financial, or political reasons. It is, in fact, not necessary for an owner of a work to provide a reason to take enforcement action against a clear case of infringement or to deny permission to use a work in a certain way.

As was widely discussed seven years ago, the Beastie Boys sued toy company GoldieBlox for using one of their songs for the simple reason that the band does not want its music used for advertisements of any kind.[2] And no further explanation is required. So, if a commercial entity can be prevented from using a protected work to engage in speech the author chooses to shun for any reason, it should be imperative that a state actor must be equally restricted from engaging in compelled speech, as this is an unequivocal violation of the First Amendment.

So, with regard to the congruent and proportional standard, copyright infringement should not be viewed solely in terms of financial harm or through the limiting metrics of volume and frequency. It should instead be understood that copyright is unique by conferring property-like ownership in the products of individual expression, which are simultaneously protected by another (and many feel the most sacred) constitutional right. Hence, any perceived injury to the Eleventh Amendment (historical debate on its meaning notwithstanding) should be substantially overwhelmed by the amount of constitutional heft embodied in the principles of copyright.

[1] The USCO report cites Tennessee v. Lane and the abrogation of immunity to enforce the Americans with Disabilities Act.

[2] At least it did not at the time. I have not checked to see if the Beasties have since changed their policy.

State Sovereign Immunity and Copyright with Rick Allen & Kevin Madigan

You wouldn’t think that a state entity would have the right to seize your intellectual property any more than it would have the right to seize other forms of property without due process. But it can. In this podcast, I talk with filmmaker Rick Allen and copyright expert and advocate Kevin Madigan about the challenge that state sovereign immunity poses to creators of copyrightable works.

Rick Allen is the CEO of Nautilus Productions in North Carolina. He spent seventeen years documenting the research and recovery work done on Blackbeard’s flagship the Queen Anne’s Revenge, after it was discovered off the North Carolina coast in 1996. When the state made infringing uses of Allen’s material, he sued, and that case Allen v. Cooper went to the U.S. Supreme Court in 2020, which affirmed that immunity barred Allen’s claim.

Kevin Madigan is Vice President, Legal Policy and Copyright Counsel at the advocacy organization Copyright Alliance in Washington D.C. He was previously Deputy Director at the Center for the Protection of Intellectual Property (CPIP) at George Mason University’s Antonin Scalia Law School. 

Contents

  • 1:34 – Overview of state sovereign immunity.
  • 5:53 – Rick Allen background & eventual conflict with North Carolina.
  • 16:21 – Why Blackbeard’s Law & what about breach of contract?
  • 19:32 – Why SCOTUS took Allen v. Cooper & what did we get out of it?
  • 22:38 – SCOTUS seemed disappointed in its own opinion.
  • 26:45 – States own IP, but enjoy immunity from infringement.
  • 28:08 – Results of survey & is state infringement increasing?
  • 31:57 – Anecdotal observations about state infringement.
  • 35:02 – Aberration of justice to have to show mass infringement.
  • 38:37 – Can have a devastating effect on creators.
  • 39:55 – Are we increasing state actors’ awareness of their immunity?
  • 42:04 – State remedies do not really exist.
  • 50:20 – Allen’s takings claim.
  • 52:45 – Where do things stand?
  • 54:47 – Funny coincidences.
  • 56:30 – Understanding the impact on Allen and all creators.
  • 59:04 – Substantial investment in works.
  • 01:001:58 – Copyright doesn’t protect labor.
  • 01:03:13 – The myth that creators will create no matter what.

Allen v. Cooper Revisited III: Data Suggests States Willfully Infringe Copyrights

In my first two Revisited posts summarizing the legislative and judicial history leading up to the Supreme Court decision in Allen v. Cooper, I dove into some fairly deep waters. But now, let’s return to the practical matter at hand for contemporary authors of creative works. In short, if a state entity infringes your copyrights, you’re basically hosed. Meanwhile, unjust though it is, state entities, as major copyright owners, may avail themselves of the law when enforcing their copyrights against infringement.

To be precise, if a state actor infringes your copyrights, you cannot not sue for money damages. At best, you may be able to obtain an injunction against the state entity and force it to discontinue the infringing conduct; but without the prospect of money changing hands, initiating a federal lawsuit is prohibitive for most authors. To summarize the Supreme Court in Allen v. Cooper, it upheld its own precedent rulings (1900s-2000) that Congress may not abrogate 11th Amendment immunity (a.k.a.) state sovereign immunity, even under its Article I power to protect intellectual property.

But, as mentioned, the Court’s opinions in Allen also provided Congress with a roadmap, albeit a limited one, whereby new remedial legislation could potentially abrogate state immunity for infringements of intellectual property. Any new legislation must be based solely on the 14th Amendment’s prohibition against the taking of property without due process, and it must be backed by solid data showing that “willful and reckless” infringement by states is a substantial enough problem for creators that the constitutional abrogation can withstand the precedent decisions in these matters. When a case is ultimately tried of course.

State Actors Seem to Know They’re Immune

In response to the Court’s legislative “roadmap” in Allen, Senators Tillis and Leahy sent letters to the Copyright Office and the Patent and Trademark Office requesting comment and evidence related to the scope of state IP infringement. In response, the USCO issued a notice of inquiry seeking input from creators and copyright owners about their experiences with state infringers. In support of this effort, the Copyright Alliance created a public survey, which included the USCO criteria. Preliminary data from the CA survey bolsters the assumption that state infringement is increasing and may be increasing because state actors are aware of their immunity from litigation.

Over a six-week period, 655 Copyright Alliance members responded, with 115 reporting that their works were infringed by state entities. Specifically, Congress should take note of those rightsholders who report that they were initially contacted by state actors for licenses, and when the rightsholders declined, the state actors proceeded to use the work(s) anyway. “… respondents who viewed the infringement as intentional…[described] situations in which an attorney’s warnings were ignored, copyright management information (CMI) on the works was ignored or removed, or use of the works continued when an entity was aware that a license had expired,” the Copyright Alliance report states.  

Further, not only do these data imply a substantial amount of willful infringement, but 44% of respondents report that when they demanded that the state actors cease the infringing conduct, the infringers specifically invoked sovereign immunity as a reason for non-compliance. More than half the infringing entities, according to the creators who offered descriptions, were state universities, while the rest were organizations like tourism boards, state departments, and museums.

Assuming that these data indicate that many state infringers are acting upon an increased awareness of their immune status, this points to a reasonable conclusion that a substantial proportion of state infringements meet the standard of “reckless and willful,” as the Supreme Court opined in Allen would be necessary for Congress abrogate immunity. Meanwhile, nearly 70% of respondents to the CA survey report that they believe they lost revenue or licensing opportunities because of state infringement.

Oddly enough, it is possible that high-profile litigation like Allen v. Cooper, which principally affirmed a 2000 decision (Chavez v. Arte Publico Press) on the state immunity question for copyright infringement, may have the effect of emboldening state actors to engage in more brazen acts of reckless and willful infringement. At the same time, the Court was unequivocal in its unanimous view that state immunity in this regard is simply wrong; and absent Rick Allen’s lawsuit, authors would not have the SCOTUS opinions in their arsenal.

In the meantime, Rick Allen, on September 4, filed a motion to reconsider one count of his complaint against the state of North Carolina. The motion states, “These allegations (and still further allegations of intentional infringement, inadequate remedies, and absence of process that Allen will add if permitted to do so) would support a finding that North Carolina’s conduct violated not only the Copyright Act but the Fifth and Fourteenth Amendments as well.” More on that in the next post addressing state IP infringement.